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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Thursday, December 18, 2014

En banc review in Occupy Wall Street protest case

In August 2014, the Court of Appeals ruled 2-1 in favor of the Occupy Wall Street protesters who got arrested after crossing the Brooklyn Bridge. The Second Circuit rejected the City's Rule 12 motion and allowed the case to proceed to discovery. The full Court of Appeals has now voted to hear the case en banc, and the 2-1 decision is withdrawn. A new decision will issue when the full 13-judge Court hears the case on reargument.

This case arises from the Occupy Wall Street movement, which sprouted in
2011 in New York City. On October 1, 2011, the protesters marched
across the Brooklyn Bridge. They allege that the police allowed them to
do this and even led them onto the bridge. The police initially did not
prevent the protesters from walking along the roadway. While some
officers eventually told the protesters to get on the sidewalk, few
protesters heard this command. They were then arrested for disorderly
conduct. The plaintiffs sue for false arrest.

The case is Garcia v. Doe,
decided on August 21. The crux of the complaint is that "'[p]rior to
terminating the march when it was mid‐way across the bridge, the police
did not convey that they were going to revoke the actual and apparent
permission of the march to proceed,' and that the officers therefore did
not have probable cause to arrest them for disorderly conduct." The
officers seek qualified immunity, arguing that "an objectively
reasonable police officer would not have understood that the presence of
police officers on the Bridge constituted implicit permission to the
demonstrators to be on the Bridge roadway in contravention of the law."
The Court of Appeals (Calabresi, Lynch and Livingston [dissenting]) disagrees, and the lawsuit can proceed.

The Supreme Court held in 1965 that "when officials grant permission to
demonstrate in a certain way, then seek to revoke that permission and
arrest demonstrators, they must first give 'fair warning.'” The officers
try to get around this by arguing that they sanctioned the bridge march
so long as the protesters remained on the sidewalk, and that once the
protesters spilled into the roadway, they were fair game for arrest;
without an implicit invitation to walk along the road, the protesters
got what they deserved when the officers arrested them.

The two-judge majority in Garcia said the Complaint stated a cause of action and that the officers were not entitled to qualified immunity at this early stage of the case. Judge Livingston issued a thorough dissent in the case. That dissent, I am sure, will drive the City's arguments this time around. En banc review is quite rare in the Second Circuit. This case must have hit a raw nerve with someone on the Court. And, I must say, I predicted this turn of events, writing in August:

Qualified immunity continues to be a subject of great debate among
judges, with many emphasizing that this immunity allows the police and
other public officials to do their jobs without the fear of crippling
lawsuits. This debate exposes the liberal-conservative judicial divide. I
would guess this case is a good candidate for full court, or en banc,
review.